Jian Ghomeshi: business unusual

The Telegram

Published: Feb 08, 2016 at midnight

Updated: Sep 30, 2017 at 6:58 a.m.

Call it an example of the pitfalls of sexual assault charges and famous (or infamous) defendants if you will. Call it an example of witness-badgering, if that’s what you truly believe. Plenty have said all of that already, and much, much more.

Because it isn’t. And that’s one thing to be absolutely clear about: the Ghomeshi trial is in no way typical.

Plenty of the reporters who are covering it clearly aren’t familiar with sex trials — they seem to have no curiosity about the strange lack of preparation that the witnesses in the case have had, or the seeming lack of rigour that the prosecution has put into tracking down the witnesses’ complete contacts with Ghomeshi.

For anyone who has covered sex assault trials on the fairly regular basis, and I’ve covered quite a few over the years, that sort of lack of preparation — tossing unprepared and incompletely interviewed witnesses into the hands of a skilled defence lawyer — is anything but typical.

Three times in the case so far, prosecution witnesses have either changed details of their stories or disclosed new statements at the trial, or literally hours before they were due to be on the stand.

With the amount of the late disclosure of evidence that Ghomeshi’s defence has received — sometimes, being told about new statements from witnesses on the very day the witnesses were supposed to testify — lawyers in a case with less star-power could argue for a mistrial, saying the prosecution didn’t give them time to prepare for new evidence. (A mistrial would arguably do nothing for Ghomeshi.)

Instead, we’re faced with a trial where the Crown’s witnesses seem poorly prepared and inadequately supported, and the Crown’s approach towards defence attacks — deciding to make limited or no attempts to address witness contradictions — makes you wonder if the Crown isn’t simply playing out the imperfect hand it believes it’s been dealt.

To me, a complete outsider from the process, it looks like the Crown and the police found themselves in an awkward position.

If the accused wasn’t Jian Ghomeshi, the prosecution might not have gone ahead with charges like these — at least, not with the pitfalls the witnesses have presented. (To be clear, I’m not suggesting that whatever witnesses do after the fact in the complex world of potential assaults by intimate partners is determinant of anything — the problem is that such trials inevitably come down to the question of credibility. The defence is clearly trying to undermine the credibility of the witnesses, and the Crown does not seem to be trying to take steps to defuse that attack — steps that clearly could have involved having witnesses detail and explain their later contacts with Ghomeshi, instead of letting the defence use those contacts as a bludgeon.)

The message in the whole case? I think the police felt they could do nothing but lay charges in a high-profile case, and the Crown decided they could only let the chips fall where they may.

In the end, we’re seeing a media circus and plenty of public dispute and discussions about the treatment of witnesses.

What we’re not seeing is what many thought this case might become: a high-profile example of what sexual abuse complainants face all the time.